Among the collection of framed degrees, recognitions and pictures hanging on Ken Falk’s office walls is a photograph of an overpass spray-painted with the words “Roadblocks are unconstitutional.”
The picture is a visual reminder of Indianapolis v. Edmonds, 531 U.S. 32 (2000), a case that Falk, legal director of the American Civil Liberties Union of Indiana, fought all the way to the Supreme Court of the United States. At issue was whether vehicle checkpoints set up by Indianapolis police to search for drugs constituted a violation of the Fourth Amendment protection against unreasonable search and seizure.
While fighting this case in court, Falk received a phone call from a man who described himself as rich, white and one who never thought he would be calling the ACLU of Indiana. However, the caller was incensed about the roadblocks and asserted no government was going to randomly stop him.
The dispute over what is and is not constitutional reflects the ACLU of Indiana’s mission to defend individual rights and preserve the liberties given in the Constitution. The organization champions the Bill of Rights, which it sees as ensuring the minority is not overridden by the majority.
The roadblock case, Falk said, illustrates that members of the minority group are always changing. As the caller realized, anyone can find themselves outside the majority at any time.
“I think it’s vital that people have a voice,” Falk said. “It’s not enough to say the Bill of Rights gives everybody a voice. You have to actively pursue that voice.”
This year marks the 60th anniversary of the establishment of the ACLU of Indiana. The organization was embroiled in controversy at its founding and continues to draw a leery, sometimes angry, response from the public. However, the group maintains that it fights solely for the rights and protections provided in the U.S. and Indiana constitutions.
Although over its history the nonprofit has fought on behalf of seemingly opposing groups – like abortion rights and right to life – the common thread is the threat to the Bill of Rights.
“We see ourselves as playing an important role in American democracy,” ACLU of Indiana Executive Director Jane Henegar said.
“We need to tell people over and over again why we do it,” she said, referring to defending the Constitution. The more people understand why the ACLU of Indiana asks questions, “the more they understand democracy, the better citizens they are, and that benefits everybody.”
Different day, same battle
At the center of many constitutional battles between the ACLU of Indiana and the state and federal governments has been Indianapolis attorney Lawrence Reuben.
Through his work with the organization, Reuben has represented the Ku Klux Klan, the Nazis, and Muslim and Jewish prisoners. He did not always share his clients’ beliefs, but he still fought to protect their right to have those beliefs.
Reuben started practicing in the early 1970s when the protests were raging over Vietnam and the overreach of the Nixon administration was coming to light. He cannot single out a reason for why he became involved with the ACLU of Indiana other than to explain that he has always been interested in “that little piece of paper that Madison and Jefferson and the boys sat in a room in Philadelphia and wrote.”
Continual violations and infringements on rights are not evidence that the ACLU of Indiana has had little impact, Henegar said. Rather the ongoing defense of civil liberties is reflective of a vibrant democracy.
Government is always changing, she said. New public servants take office, new legislative bodies convene, new government agencies start operations, and everyday human beings apply constitutional principles to the circumstances in which they find themselves.
Indiana Attorney General Greg Zoeller has been opposing counsel in several ACLU legal actions. He echoed Henegar in saying that the judicial branch functions properly when both sides are well represented.
“I never complain about individuals or various groups exercising their right to file legal challenges against state statutes they disagree with,” he said. “… Legal challenges are an important safeguard built in to the system to protect against all levels of government exceeding their bounds.”
Pointing to recent headlines about the federal government’s covert surveillance program of cell phones, Reuben sees the founding principles being trampled. Although he believes the actions have put the survival of the republic in jeopardy, he maintains the situation would have been worse if the ACLU had not fought earlier battles over free speech and privacy.
“I think we’d be in deeper doo-doo than we are now,” he said, “and we are in some serious trouble.”
‘Weakest and least powerful’
Henry Price was a young litigator in Indianapolis when he attended a city council meeting in the late 1960s to argue against a pending ordinance barring the production of the musical “Hair.”
As he was waiting for his two minutes to speak, a young African-American man addressed the council, explaining he wanted to file a complaint of police brutality. No city agency would listen to him, he said, so he was appealing to the council.
The alleged beating was part of a larger incident in an African-American neighborhood where police arrested 130 individuals. During the melee, the young man said law enforcement took him behind a mattress factory and beat him.
The members of the council replied they could not help him because they did not have jurisdiction over the police department.
Switching from being a private attorney to being an ACLU attorney, Price told the council it was not a question of jurisdiction but of political will. He then convinced the council to appoint a committee on the matter and hold a hearing.
For three days, he brought witness after witness to testify what had happened that night until a judge enjoined the proceedings. However, by that time, all the charges had been dropped except for one misdemeanor.
“People who have their rights violated,” Price said, “are often the weakest and least powerful.”
In the roadblock case, the least powerful were the drivers being pulled over.
The cert petition for Indianapolis v. Edmonds was pending before the U.S. Supreme Court when Scott Chinn started his new job as the city’s corporation counsel in 2000. Having spent much of his career working in government, Chinn had tangled with the ACLU of Indiana at every level of state and federal courts.
The justices took the case and in a 6-3 ruling found for Edmonds. Even though in the past the court had favored suspicionless searches to stop drunk driving or illegal immigration, it concluded Indianapolis had carried the practice too far.
Thirteen years later, Chinn, now a partner at Faegre Baker Daniels LLP, can readily recall the details of that case, the precedents and the nuances of the ruling. He does not harbor resentment over the case but instead applauds the legacy of the ACLU.
“I like it best when my government clients appreciate that part of the checks and balances that we need to have in government, in our democracy, is realizing the need to have a strong advocate for civil liberties to challenge government actions,” Chinn said.
The photograph of the overpass in Falk’s office does not indicate he considers this the most significant case he has handled. Indeed, a weary smile spread across his face when asked which cases in his nearly 20 years at the ACLU of Indiana have been the most important.
Some cases are lost, some cases are won, Falk said, but there’s always another case.•